Meneghetti Gomes (Migration)

[2019] AATA 3308

Meneghetti Gomes (Migration) [2019] AATA 3308 (17 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vinicius Meneghetti Gomes

CASE NUMBER:  1902888

HOME AFFAIRS REFERENCE(S):          BCC2018/4936810

MEMBER:Mr S Norman

DATE:17 July 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa.

Statement made on 17 July 2019 at 12:42pm

CATCHWORDS
MIGRATION – cancellation – 457 (Business (Long Stay)) visa – breach of condition 8107 – applicant ceased employment with sponsor –applicant is now the subject of an approved nomination – degree of hardship – decision under review set aside

LEGISLATION
Migration Act 1958, ss 116, 189, 198

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 4 February 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa under s.116 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The delegate cancelled the visa under s.116(1)(b) of the Act on the basis that the applicant was found to have breached condition 8107. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. After considering new evidence in this case, the Tribunal has decided to make its decision on the papers. The applicant was represented in relation to the review by his registered migration agent.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b) of the Act. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

6. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 attached to the applicant’s visa (see Attachment).

7. The applicant was granted a Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa on 20 November 2015 (stay period – 20 November 2018). By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 14 January 2019, the applicant was advised there may be grounds to cancel his visa under s.116(1)(b); as it appeared the applicant was in breach of condition 8107(3)(b). That stated:

   (b) if the holder ceases employment – the period during which the holder ceases employment must not exceed 90 consecutive days

8. In the NOICC, the delegate noted the applicant’s standard business sponsor for the Subclass 457 visa was BRAZA TRADING P/L (the sponsor). The Department had subsequently received written advice from the sponsor dated 3 May 2018, that the applicant had ceased employment with them from 27 April 2018.[1] There was no further advice that the applicant had returned to work for the sponsor or an associated entity of the sponsor.

   [1] Department – folio 14.  

9. The delegate then noted the nominated occupation was not one specified in the relevant legislative instrument referred to in 8107(3)(a), and accordingly while the applicant continued to hold the Subclass 457 visa, he could only lawfully work in Australia for either the sponsor or an associated entity of the sponsor.

10. After then considering the evidence, the delegate was satisfied the applicant had ceased employment with the sponsor for a period exceeding 90 consecutive days. In their decision, the Department delegate also noted the circumstances in 8107(3A) do not apply to the applicant because his occupation is not specified in an instrument in writing to exempt him from having to meet the requirements of 8107(3)(a)(ii). Consequently, for the applicant to be able to lawfully work for another sponsor in Australia while he held his visa, he would first need to lodge a new Temporary Business Entry Nomination application in respect of him and for the Department to approve this. However, the delegate was satisfied that no such further approval has been granted by the Department.

11. In their response to the NOICC,[2] the applicant said they had lived in Australia since 2012 and complied with the requirements for the Subclass 457 Visa. The applicant did say they were employed by the sponsor (a restaurant group) for over two years and believed they were working to the company’s satisfaction. However, two days prior to lodging a permanent residency application the applicant’s employment was terminated by his sponsor. The applicant had then sought compensation with Fair Work and had claimed to have ‘received a payout’.

    [2] Department - folio 17.

12. After the termination, the applicant then sought employment but due to his past treatment by, and his experience with, his former sponsor, he suffered from anxiety and found it difficult to maintain a positive outlook. However, the applicant did manage to secure a position as a sous chef with Henry’s restaurant at Cronulla and had attached evidence of same[3] (including a Contract dated 17/01/2019[4]). The applicant had also contacted a migration agent and was preparing to lodge a new application.[5]

    [3] Department – from folio 23.

    [4] Department – from folio 22.

    [5] Department – folio 8.

13. The applicant had also requested the Department refrain from making a decision to cancel as a new nomination application would be lodged in February 2019. However, the delegate was satisfied the applicant had ceased employment for more than 90 consecutive days and therefore did not meet 8107(3)(b) of condition 8107. The delegate then found the grounds for cancellation of the applicants Subclass 457 visa existed.  

14. After considering same, and for the reasons set out by the delegate, the Tribunal is satisfied the applicant had breached condition 8107(3)(b), and that grounds for cancellation of the visa existed.

15. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) of the Act, exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

16. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

17. Regarding the purpose of the Brazilian applicant’s travel to and stay in Australia, the Subclass 457 Visa allows skilled noncitizens to travel to and stay in Australia for the purposes of temporarily working at an approved business for up to 4 years. An applicant for that visa must be sponsored by an approved business (sponsor). The present applicant was granted the Subclass 457 visa for the sole purpose of permitting him to engage in employment in a nominated position. The purpose for which the visa was granted ended on around 27 April 2018, at which time the applicant ceased employment with his former sponsor. However, the Tribunal also notes the applicant had claimed to have lodged a complaint to Fair Work, to have subsequently been compensated, and to have electronically lodged documentary evidence of same to the Department (though no such documentary evidence was located).

18. In migration agent submissions of 10 July 2019,[6] it was claimed the applicant had a ‘substantial financial investment in a home’[7] (presumably in Australia). The Tribunal also notes the applicant was recently (22 May 2019[8]) named in a successful nomination approval for the possible grant of a Subclass 482 Temporary Work visa. Consequently, the Tribunal accepts the applicant’s travel to and stay in Australia, was for the purposes intended for the Subclass 457 visa.

    [6] Tribunal – from folio 26.

    [7] Tribunal – folio 26 (reverse side).

    [8] Tribunal – folio 23.

19. Regarding the extent of compliance with visa conditions, the applicant ceased employment with his sponsor on 27 April 2018. At the time of the Department delegate’s decision (4 February 2019), the applicant was not the subject of an approved nomination from a standard business sponsor. However, and as stated above, at the time of the Tribunal decision, the applicant was again the subject of an approved nomination from a standard business sponsor.

20. Regarding the degree of hardship that may be caused to the applicant or his family if his visa is cancelled, Department records indicated the applicant had a female family member in Australia (Carolina KHOURI JOLY - DOB: 19/07/1995), and she may be negatively impacted if the applicant’s visa is cancelled. Further, in his response to the NOICC, the applicant understood that if placed on a BVE he would not have work rights; though the applicant may subsequently request work rights even if granted a BVE.

21. In the migration agent submissions of 10 July 2019,[9] it was claimed the applicant had resided in Australia with his family since 2012, that he had established significant community links and that he had a substantial investment in a home. Given his length of time in, and his connections with, the Australian community, the Tribunal will accept the applicant would suffer reasonable hardship if the visa is cancelled, and he may (as claimed) be forced to return to Brazil and ‘start his life again’.

    [9] Tribunal – from folio 26.

22. Regarding the circumstances in which the ground for cancellation arose, the applicant’s employment with his sponsor was terminated (two days prior to applying for permanent residency), and he had then sought and had claimed to have been compensated after review by the Fair Work Ombudsman. The applicant’s employment was terminated on 27 April 2018 and up to the date of the delegate’s decision (being 4 February 2019), the applicant had not been the subject of a new approved nomination. As noted herein, that has now changed.

23. The applicant had claimed they had actively sought employment but had suffered from anxiety which made it difficult for them to sustain a positive outlook (though no corroborating medical evidence was lodged).

24. In the migration agent submissions of 10 July 2019,[10] it was also noted that Department policy when considering the cancellation of a visa, included that ‘as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the control of the visa holder’.  The Tribunal understands this is policy guidance which may be departed from where there exist reasonable grounds to do so. For instance, where an applicant did not seek to remedy their migration circumstances for a lengthy period, and without reasonable grounds. However the present applicant was now the subject of an approved nomination for a Subclass 482 visa; so he had in fact taken steps to remedy his position and again seek a lawful basis upon which to remain in Australia.

    [10] Tribunal – from folio 26.

25. Next, the Tribunal has no evidence the applicant has been uncooperative with either the Department or the Tribunal. Department records indicate the applicant had a female family member in Australia (Carolina KHOURI JOLY - DOB: 19/07/1995), and her visa may be impacted if the applicant’s visa is cancelled. The Tribunal has no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

26. Next, if the applicant’s visa is cancelled he would become an unlawful non-citizen and liable to be detained under s.189 and removed under s.198 of the Act. However, there is no evidence before the Tribunal that has satisfied me the applicant would be subject to indefinite detention. Further, after considering the evidence the Tribunal is satisfied the applicant could temporarily retain his Bridging visa in order to remain in the community to organise his affairs prior to departing Australia.

27. Next, the Tribunal notes that PIC4013 stated (in part):

    PIC 4013

    …..

    (2)  A person is affected by a risk factor if a visa previously held by the person was cancelled under section 116, 128 or 133C of the Act:

    (a)  because the person was found by Immigration to have worked without authority; …

28. In the present case, and as noted above, for the applicant to be able to lawfully work for another sponsor in Australia while he held his visa, he would first need to lodge a new Temporary Business Entry Nomination application and for the Department to approve this. However, the applicant did manage to secure a position as a sous chef with Henry’s restaurant at Cronulla (not his sponsor). It therefore appeared the applicant may have worked without authority in Australia; and given his need to continue to pay for his home investment, it is plausible he would have engaged in further employment as soon as he was able. However, the basis for the Department delegate’s decision was not that the applicant had worked without authority, but that he had breached condition 8107(b) (the period during which the holder ceases employment must not exceed 90 consecutive days). Therefore, the Tribunal is not satisfied the applicant is subject to the risk factor as set out in PIC 4013.

29. Considering the circumstances as a whole, and particularly given the applicant is now the subject of an approved nomination from a standard business sponsor, the Tribunal concludes that the visa should not be cancelled.

    DECISION

30. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa.

    Mr S Norman
    Member

    
    

    ATTACMENT

    Condition 8107

    (1)  If the visa is not a visa mentioned in subclause (3) or (4), and was granted to enable the holder to be employed in Australia, the holder must not:

    (a)  cease to be employed by the employer in relation to which the visa was granted; or
    (b)  work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted; or
    (c)  engage in work for another person or on the holder’s own account while undertaking the employment in relation to which the visa was granted.

    (2)  If the visa is not a visa mentioned in subclause (3) or (4), and subclause (1) does not apply, the holder must not:

    (a)  cease to undertake the activity in relation to which the visa was granted; or
    (b)  engage in an activity inconsistent with the activity in relation to which the visa was granted; or
    (c)  engage in work for another person or on the holder’s own account inconsistent with the activity in relation to which the visa was granted.

    (3)  If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):

    (a)  the holder:

    (i)  must work only in the occupation listed in the most recently approved nomination for the holder; and
    (ii)  unless the circumstances in subclause (3A) apply:

    (A)  must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; or
    (B)  if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor — must work only in a position in the business of the sponsor or an associated entity of the sponsor; or
    (C)  if the sponsor is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor — must work only in a position in the business of the sponsor; and

    (aa)  subject to paragraph (c), the holder must:

    (i) if the holder was outside Australia when the visa was granted—commence work within 90 days after the holder’s arrival in Australia; and
    (ii) if the holder was in Australia when the visa was granted—commence work within 90 days after the holder’s visa was granted; and

    (b)  if the holder ceases empl​oyment — the period during which the holder ceases employment must not exceed 90 consecutive days; and
    (c)  if the holder is required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder, in the location where the holder’s position is situated—the holder: 

    (i)  must hold the licence, registration or membership while the holder is performing the occupation; and
    (ii)  if the holder was outside Australia when the visa was granted—the holder must hold that licence, registration or membership within 90 days after the holder’s arrival in Australia; and
    (iii)  if the holder was in Australia when the visa was granted—the holder must hold that licence, registration or membership within 90 days after the holder’s visa was granted; and
    (iv)  must notify the Department, in writing as soon as practicable if an application for the licence, registration or membership is refused; and
    (v)  must comply with each condition or requirement to which the licence, registration or membership is subject; and
    (vi)  must not engage in work that is inconsistent with the licence, registration or membership, including any conditions or requirements to which the licence, registration or membership is subject; and
    (vii)  must notify the Department, in writing as soon as practicable if the licence, registration or membership ceases to be in force or is revoked or cancelled.

    (3A)  For subparagraph For subparagraph (3)(a)(ii), the circumstances are that:

    (a)  if the nomination was made before 1 July 2010 — the holder’s occupation is specified in an instrument in writing for subparagraph 2.72(10)(d)(ii) or (iii); or
    (aa)  if the nomination is made on or after 1 July 2010 — the holder’s occupation is specified in an instrument in writing for subparagraph 2.72(10)(e)(ii) or (iii); or
    (b)  the holder is continuing to work for the sponsor, or the associated entity of the sponsor, for the purpose of fulfilling a requirement under a law relating to industrial relations and relating to the giving of notice.

    (3B)  If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(8):

    (a)  the holder must work only in the occupation or position in relation to which the visa was granted; and
    (b)  if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days.

    (4)  If the visa is:

    (a)  a Subclass 401 (Temporary Work (Long Stay Activity)) visa; or
    (b)  a Subclass 402 (Training and Research) visa; or
    (ba)  a Subclass 420 (Temporary Work (Entertainment)) visa;
    the holder must not:
    (c)  cease to engage in the most recently nominated occupation, program or activity in relation to which the holder is identified; or
    (d)  engage in work or an activity that is inconsistent with the most recently nominated occupation, program or activity in relation to which the holder is identified; or
    (e)  engage in work or an activity for an employer (within the meaning of subregulation 2.72A(8)) other than the employer identified in accordance with paragraph 2.72A(7)(a) in the most recent nomination in which the holder is identified.